The EU Restriction of Hazardous Substances Directive: Problems arising from Implementation Differences between Member States and Proposed Solutions

Directive 2002/95/EC, the Restriction of Hazardous Substances or 'RoHS' Directive, restricts the use of environmentally hazardous substances in electrical and electronic equipment distributed and sold in the EU from 1 July 2006. The Directive's objectives are to harmonize EU Member States' national legislation and protect human health and the environment. This article reveals differences in the implementation of the RoHS Directive at the time it took effect. Differences were revealed in the analysis of results obtained from telephone interviews conducted with all but four of the 25 EU Member State RoHS enforcement officials. Differences in implementation created barriers to the achievement of the RoHS Directive's objectives and caused problems for producers of electrical and electronic equipment. The article attributes the principal cause of differences in implementation to insufficiently detailed text in the RoHS Directive. The article also considers how barriers and problems could have been prevented and makes proposals to solve them.     

The EU Directive on Electronic Signatures--A Worldwide Model or a Fruitless Attempt to Regulate the Future?

The Directive on a Community Framework for Electronic Signatures is an essential and important new legal standard for the regulation of electronic signatures. The following article describes this Directive and assesses whether this new legal framework will be an effective and successful worldwide model or whether it will be rather fruitless. While doing this, I will consider the implementation of the Directive into UK and German law. This will also reveal some possibilities of how the legal status of electronic signatures can or cannot and should or should not be regulated. Furthermore, I will refer to other acts, for example, the UCITA and UETA of the US and the Model Law on Electronic Commerce and Draft Uniform Rules on Electronic Signatures of the UNCITRAL. My result is that the EU Directive is to be approved in general. Only if one said that in an ever-changing world every law was premature or even that in an imperfect world every law was either insufficient or unnecessary, would it be consequent to decline regulation of electronic signatures completely. However, regarding the details, some provisions, for example, the possibility of introducing a voluntary accreditation scheme, are open to criticism.     

Webcasters’ protection under copyright – A comparative study

This paper studies the fourth generation ‘peer-2-peer’ (P2P) file sharing technology which is also known as streaming technology from the technology point of view. It critically analyses the nature of streaming technology and assesses similarities to broadcasting for the purpose of copyright protection in the name of webcasting. In addition, it considers the possibility of protecting webcasting within the framework of broadcasting under copyright and the extent of broadcasters’ rights applicable to webcasters. Based on the conclusions derived from the discussion of UK, New Zealand, Italian and US law on streaming, WIPO Standing Committee on Copyright and Related Rights (SCCR) draft documents will be critically analyzed. The Last part of this work will offer suggestions as to how to protect webcasting (streaming technology) under the umbrella of copyright.     

The Transfer of Personal Data to Third Countries Under EU Directive 95/46/EC

The 1981 Council of Europe Convention 108 and EU Directive 95/46/ EC assert that data protection is privacy protection. Consequently, countries with data protection rules control trans-border data flows to protect the rights of their citizens. Under the Directive, but subject to some derogations, personal data may only be transferred to third countries with adequate protection. 'Adequacy' is to be assessed in the light of all the circumstances. Alternative safeguards can be provided by means such as contractual arrangements. The Data Protection Commissioners have tried to define 'adequacy' as the usual data protection principles plus an assurance of compliance. This can be delivered by self-regulation as well as formal law. The Directive has not made a radical break with the past. The usual principles are those found in Convention 108 and in the 1980 OECD Guidelines. Those instruments also dealt with the control of trans-border data flows because of fears of restrictions on the free flow of information. The flexibility of the effective current UK law, which permits flows whilst preventing those which would lead to a breach of data protection, would have prevented the acrimony of the current debate with third countries. National laws on transborder data flows long pre-date the Directive and data protection authorities can be expected to continue to promote pragmatic methods of protecting exported data such as the use of model contracts either as a basis for derogation from 'adequacy' or as part of a package to satisfy the adequacy test. Work is taking place to build bridges between those with formal law and others relying on self-regulation. In Ottawa last October OECD ministers reaffirmed the 1980 Guidelines and if practical privacy protection can be secured globally, transborder data-flow control is of much less concern.     

Law reform in the UK

This article reports on several developments in 2003: the implementation of the European Communities Framework Employment Directive, the introduction of a private member's Equality Bill, and the publication of the National AIDS Trust's report on UK anti-discrimination law.     

EU Directive on unfair commercial practices--a UK perspective

Legal context. Lack of any catch-all law of unfair competitionin the UK – difficulty for brand owners in protectingtheir IP rights with regard to look-alike products. UK remediessuch as passing-off and trade mark infringement have provedtoo narrow. EU Directive will add to the remedies availableand may assist brand owners in their battle against look-a-likeproducts. Key points. Legal position on look-a-likes in the UK –objectives of the new Directive. Analysis of the two main waysto establish a commercial practice is unfair in the look-a-likecontext. The likely effect of the Directive in the UK on copycatsyndrome and looking to the future. Practical significance. Brand owners may use the new law alongwith the old to stamp out look-a-like activities. Practicalapplication of the test under the Directive. Remedies includecourt orders to stop and prevent unfair commercial practiceto optional possibility of court-imposed requirement to publisha corrective statement or fine – if latter is introducedinto the UK would be an additional deterrent factor of practicalvalue.     

Understanding the rule of prevalence in the NIS directive: C-ITS as a case study

The paper discusses the interpretation of the rule of prevalence of Article 1 (7) NIS Directive, which has not been the subject of any academic debate so far. Article 1 (7) NIS Directive organises the interface between the NIS Directive regime and other European Union sector-specific legislations imposing (cyber)security obligations, by laying down the conditions according to which such obligations would prevail over the NIS Directive regime. Based on the case study of the recent proposal from the European Commission to regulate Cooperative Intelligent Transport Systems (‘C-ITS’), the paper unravels a number of issues and unclarities. Recommendations are made with respect to the interpretation and application of the rule of prevalence of Article 1 (7) NIS Directive. In anticipation of a potential future C-ITS regulation and in the context of a possible upcoming revision of the NIS Directive, the paper also makes suggestions to ease the regulation of the interface between the NIS Directive and other (cyber-)security regulation, particularly in the field of C-ITS.     

Implementing the artist's resale right directive

Legal context: Directive 2001/84/EC, on the resale right for the benefit ofthe author of an original work of art, introduced the harmonisationof artist's resale right within the EU (and subsequently withinthe EEA). Resale right already existed in many EU States, butthe Directive also required its creation in others (such asthe UK) to which it was previously unknown. The implementationof the Directive in the UK was accordingly a matter of somecontroversy. Key points: This article concentrates on the legal difficulties involvedin that implementation, viewed against the background of theUK Government's stated general policy on the transposition ofEU Directives. From several points of view, the rules laid downin the Directive called for elaboration or clarification, andin a number of cases such an approach was appropriate. In othercases, however, this turned out not to be appropriate. Practical significance: As a result, although in the main it was possible to transposethe Directive into a clear and workable set of domestic rules,a number of issues had to remain unresolved. Among the mostimportant were: whether works of ‘applied art’ shouldattract resale right, and the territorial scope of the transactionscovered by the right.     

Sui generis database protection: a new start for the UK and Ireland?

LEGAL CONTEXT: The decisions of the ECJ in William Hill and Fixtures Marketingconstitute setbacks for rightholders seeking to protect thecontent of databases from unauthorised use by others. This developmentis keenly felt in Ireland and the UK because of the absenceof any overlapping protection in the form of unfair competitionrelief against parasitical activities by competitors. Ironically,post-Feist US copyright law, in the form of the Montgomery CountyRealtor case (1995), when contrasted with the recent Dutch ZAHdecision (2006), shows that US copyright law affords a greaterlevel of protection than is available in the EU under the DatabaseDirective. The ZAH decision also builds upon earlier Germancase law, virtually eliminating liability for linking to websitematerial made available to the public. KEY POINTS: In ZAH, the Dutch Court's interpretation of the Directive andcriteria to be met before content may be copyright protectedwas very restrictive, in stark contrast to the approach of mostCommon Law judges. The result is a very different one to thatintended by the drafters of the Directive, a point reinforcedby the European Commission's own 2005 assessment of the Directive. PRACTICAL SIGNIFICANCE: The Directive has been a disaster from every perspective. Lawmakersin the UK and Ireland may feel that the time is right to consideradopting national measures to produce a more balanced protectivemeasure in respect of commercial databases and an effectivemeans of stimulating investment by following unfair competitionprinciples, rather than the quasi-copyright model of the suigeneris right. ZAH demonstrates that until the European Commissiontackles the critical issue of a common originality standard(which is very unlikely) national differences will be inevitablewithin EU copyright law.     

Monopoly defeating mechanisms: Will they function in the digital world?

History reveals that ‘copyright’ was originally monopolistic (in the early fifteenth century) and remained so until the enactment of the Statute of Anne in 1709. Since then copyright has striven to maintain a delicate balance between incentive to authors and avoiding monopolistic stagnation. To achieve these goals, certain monopoly-defeating mechanisms have been adopted such as: fair use, public domain, the idea/expression dichotomy and the exhaustion doctrine. Recently, however, with the implementation of new laws: for instance the Digital Millennium Copyright Act (1988), the EU Copyright Directive (2001), and the implementation of the EU Copyright and Related Rights Regulation amending the Copyright, Design and Patents Act 1988, there is a growing concern that the mechanisms which were enacted to defeat the monopoly will not work in the digital medium. With the provision of affixing technological measures to copyrighted works and the non-application of the exhaustion doctrine in the digital world, arguably the monopoly defeating mechanisms have been disabled. The aim of this paper is to demonstrate the way monopoly defeating mechanisms are becoming non-functional in the digital world. Furthermore, the study also demonstrates how the European Copyright Directive and the UK implementation of the Directive has transgressed the boundary of exclusive rights set by the two World Intellectual Property Organization (WIPO) treaties – the World Copyright Treaty (WCT) and the WIPO Performers and Phonograms Treaty (WPPT) – and copyright law, thereby strengthening the copyright owner's rights in a way that was never intended by the WIPO treaties or by copyright law. Consequently, the new laws have also shifted copyright's attention from commercial pirates to non-commercial individual users. The study aims to demonstrate how the shift took place and finally, trace the recurrence of the monopoly; giving rise to a situation where there is no fair use/dealing, no public domain, no idea/expression distinction and no exhaustion doctrine.     

The Power of EU Collective Action: The Impact of EU Data Privacy Regulation on US Business Practice

Contemporary critiques of globalisation processes often focus on the potential levelling of regulatory standards and the export by the United States of neoliberal norms of deregulation and market facilitation. This paper, in contrast, examines the extra-jurisdictional impact of EU regulatory policy on the behaviour of foreign private parties, even in powerful states such as the United States. Shaffer finds that the threat of curtailing access to the EU's large market provides the EU with leverage. By acting collectively, EU Member States can magnify the impact of European policy on US business practice and enhance EU Member State clout in the negotiation of de jure and de facto foreign standards. The site of analysis is the current dispute between the United States and the European Union over the provision of 'adequate' data privacy protection in accordance with the EU Directive on data privacy. The paper explores the many ways in which the Directive affects US practice through changing the stakes of US players – including regulators, businesses, privacy advocates, lawyers and privacy service providers – and thereby shifting the playing field in the United States on which competing interest groups clash. In examining the interaction of EU law, US practice and international trade rules, the author finds that WTO law, rather than constraining the Directive's extra-jurisdictional impact, provides the EU with a shield against US retaliatory threats, thereby facilitating a trading up of data privacy standards. The paper concludes by examining the conditions under which cross-border exchange can lead to a leveraging up of social protections: the desire for firms to expand their markets, Member States' collective bargaining power buttressed by market clout, the nature of luxury goods, the externalities of foreign under-regulation legitimising EU intervention, and the constraints of supranational trade rules.     

The Acquired Rights Directive and Compulsory Competitive Tendering in the UK: An Economic Perspective

This paper considers neglected economic aspects of the conflict between the desire of EU Member States to extend competitive tendering in their public sectors and EC law which guarantees terms and conditions of employment for workers who are transferred to a new employer. Whilst the Acquired Rights Directive explicitly contains reference to economic considerations, the debate concerning its revision has largely neglected economic analysis. Concentrating upon UK experience, we show how differences in the interpretation of the term economic in the Directive can give rise to a clash between principles of economic and legal decision-making.     

An academic perspective on the copyright reform

The recently proposed new Copyright Directive was released on 14 September 2016. It has been described by EU law-makers as the pillar of the copyright package promised by the European Commission (EC), to be delivered before the end of Mr. Juncker's mandate. In its Communication of 6 May 2015, the EC had stressed “the importance to enhance cross-border access to copyright-protected content services, facilitate new uses in the fields of research and education, and clarify the role of online services in the distribution of works and other subject-matter.” The proposed Copyright Directive is thus a key measure aiming to address two of these three issues. However it is not without shortfalls.We have therefore decided to publicly express our concerns and send an open letter to the European Commission, the European Parliament and the Council to urge them to re-assess the new provisions dealing with mandatory filtering of user-generated content in the light of the CJEU case law and the Charter of Fundamental Rights of the European Union.In a more extended statement, we examine in details the text of both the explanatory memorandum and the Directive itself.Our conclusions are:1. A comprehensive re-assessment of Article 13 and Recital 39 in the light of the Charter of Fundamental Rights of the European Union and the E-commerce Directive (in particular Article 15) including CJEU case law is needed, as the proposed Copyright Directive does not expressly address the issue of its compatibility with both of these texts.2. Recital 38 does not clarify the domain and effect of Article 13. Rather, it creates confusion as it goes against settled CJEU case law (relating to Articles 14 and 15 of the E-commerce Directive and Article 3 of the Infosoc Directive). Recital 38 should therefore be deleted or substantially re-drafted/re-phrased. If the EU wants to introduce a change in this regard it should clearly justify its choice. In any case, a recital in the preamble to a directive is not an appropriate tool to achieve this effect.We hope that this exercise will prove useful for the debate that has now begun both in the European Parliament and in the Council.     

An Analysis of the Transfer of Undertakings (Protection of Employment) Regulations 2006

This article analyses the Transfer of Undertakings (Protectionof Employment) (TUPE) Regulations 2006, which revoke, entirely,the TUPE Regulations 1981. As well as comprising the UK Government’sresponse to the amending Acquired Rights Directive 1998/50/EC,they purport to fulfil a four-fold aim of increasing the coverageof TUPE in outsourcing situations; clarifying the law on transferconnected dismissals and when employees may agree transfer relatedchanges to employment conditions; providing for the supply bytransferors of employee liability information; and relaxingthe provisions of TUPE in insolvency situations to the extentpermitted by the Acquired Rights Directive 2001/23/EC. It isto be argued that some of these aims are realised in the newRegulations, and others not. And certain areas worthy of newregulation are ignored. What is ultimately apparent howeveris that the new Regulations cannot be taken to be an ‘employers’charter’. In some instances the new Regulations may breathenew life (and litigation) into the law.     

Legal and ethical considerations of forensic anthropological research

In the UK, Forensic Anthropology is maturing rapidly, consequently demanding discussion of previously overlooked yet fundamental principles of this discipline. UK law and ethics are interpreted from a forensic anthropological standpoint. First, the influence of UK law and ethics on the stages of forensic anthropological research (the collection, analysis and storage of human remains) are discussed. Existing ethical codes of conduct are investigated for their relevance to researching forensic anthropologists. It is concluded that: when appropriately interpreted, UK law and ethics are extremely influential on forensic anthropological research; debate within this area is required; and that an understanding of the law and ethical thought is vital for the successful growth of forensic anthropology in the UK.     

Unblocking the Digital Economy Act 2010; human rights issues in the UK

Through an example of a study utilizing the case-law research method, this paper critically assesses whether taking into account both the findings of Mr La Rue (the United Nations Rapporteur on Human Rights) as well as some Court of Justice of the European Union's (CJEU) case-law, website blocking could be implemented in a way which is compatible with the European Convention on Human Rights (ECHR), in particular, with Article 10. Drawing upon, inter alia, Ofcom site blocking review, sections 17 and 18 of the Digital Economy Act 2010 (DEA), section 97A of the Copyright, Designs and Patents Act 1988 (CDPA), and some independent expert evidence, this paper's major argument is that in view of the CJEU SABAM v Scarlet and SABAM v Netlog, the UK government's decision to repeal the website blocking provisions of the DEA appears appropriate. The paper examines the findings of Fox v BT. It contrasts such findings with the CJEU's case-law and in light of the incompatibility of any website blocking measure with the cumulative three-part test set out in the United Nations Rapporteur on Human Rights discusses a number of implications. It concludes that given that the implementation of content blocking systems, such as Cleanfeed is likely to result in general monitoring being carried out; the UK government could possibly be in breach of EU law, namely, Article 15(1) of Directive 2000/31.     

融媒体时代网播组织的法律保护困境与应然路径选择——兼评新《著作权法》第47条

在当今媒体融合时代,网播组织已成为文化产品的主要提供者。现实中网播组织主要有两种类型:传统广播组织的互联网衍生平台和独立网播平台。互联网衍生平台依托于传统广播电台、电视台,具有天然的内容资源优势,而独立网播平台播放的节目通常依据其与第三方签订的合同而定。由于网播组织目前在我国版权法上的地位模糊不清,实践中网播组织遭遇信号盗播时或以传统媒体的被许可人身份起诉,或以独立的著作权人身份起诉,但在司法实践中均遭遇维权困境。为顺应技术发展趋势,保护并促进网络产业发展,我国《著作权法》应将网播组织纳入广播组织权的主体保护范围。     

Scientia potentia est: Making threats of copyright infringement

There has been much debate in the UK as to whether copyright law should have an unjustified threats provision similar to that found in UK patent, trade mark, and registered design law. Unjustified threats provisions for copyright law exist in other commonwealth jurisdictions, such as Australia and India. We argue that all of the existing unjustified threats provisions in the UK are too narrow in their scope. Threats more generally have played a significant role in the development of copyright law, and a provision aimed at ‘unjustified’ threats may paradoxically restrict discourse about the scope of copyrights. We therefore suggest that the best way to proceed is not just to introduce an unjustified threats provision but instead to make clearer what is, and is not, protected by copyright.     

Expert systems and the law

ABSTRACT

The project discussed here involved an online debating activity between intellectual property (IP) law students in Egypt and the UK, using a closed group on Facebook. The aim was to harness freely available online social media technology to create a space in which valuable discussions and learning could take place. We showed that Facebook can be a powerful educational tool to encourage active learning and usefully connect learners across continents. In enabling the exchange of views between students in different jurisdictions, Facebook provides exposure to different cultures and different perspectives as well as different legal cultures and different legal systems, while also, importantly, enabling participants to identify commonalities. This debate focused on IP law, which is of increasing international importance, and specifically on the topic of access to medicines, which is highly contentious. Through the activity, students learned that they need not only to learn the law, but also to appreciate the socio-cultural and political complexity underlying policy issues in different jurisdictions. On reflection, the Facebook debate definitely enhanced the study of IP law through an interesting and enjoyable international, intercultural activity, led by staff and students, which successfully extended the classroom experience.     

Industry-sponsored medical education--in the quest for professional integrity and legal certainty

Industry-sponsored medical education is a much disputed issue. So far, there has been no regulatory framework which provides clear and definite rules as to whether and under what circumstances the sponsorship of medical education is acceptable. State regulation does not exist, or confines itself to a very general principle. Professional regulation, even though applied frequently, is rather vague and indefinite, raising the general question as to whether self-regulation is the right approach at all. Certainly, self-regulation by industry cannot and should not replace other regulatory approaches. Ultimately, advertising law in general and the European Directive 2001/83/EC specifically, might be a good starting point in providing legal certainty and ensuring the independence of medical education. Swiss advertising law illustrates how the principles of the European Directive could be implemented clearly and unambiguously.